Discussion on the law that applies to or affects Australia's emergency services and emergency management, by Michael Eburn, PhD and Barrister.

Treating those without capacity to refuse consent

Today’s question comes from a NSW Paramedic and again raises the touchy issue of s 20 of the Mental Health Act 2007 (NSW). My correspondent writes:

I have a query about the legalities of transporting patients where they lack the ability to consent/or refuse consent to non-transport, but they are refusing to come to hospital.

I am speaking of situations like delirium, acute head injury or the heavily intoxicated, among other examples. Specifically where we, as clinicians after thorough assessment, have determined the patient has lacked either competency or capacity to refuse transport (and therefore must be taken to hospital).

I understand that where life threatening conditions exist and the patient is unconscious we have a duty of care to take the patient to hospital under the doctrine of necessity. I’m more concerned about what I perceive to be the grey area where the patient is not long term incapacitated and not unconscious, but awake and probably protesting to be taken to the hospital against their will.

As I understand it, the Guardianship Act has procedures in place for patients who are deemed formally incapacitated on a long term basis.

I am wondering about the patients where their condition is transient and no guardian has been appointed (like a head injured person who is too confused or drowsy to demonstrate an understanding of the important risks of non transport, or an elderly patient who has acute delirium who is usually able to make decisions for themselves, but today has no idea what day it is or what is wrong with them and is trying to go to the toilet in the corner of the bedroom, but is refusing to go to hospital).

In these cases, where does the law stand regarding our authority to transport them to hospital. Is it a requirement that a paramedic uses section 20 of the mental health act to transport these patients to hospital as they are “mentally disordered”? Note: these patients are medically unwell, not mentally unwell, and I would not be taking them to a specific mental health facility, but to a regular emergency department. There has been significant contention amongst my paramedic peers about need to use the mental health act to transport these people. Or whether, as they are unable to demonstrate competency and capacity we have the right, under a duty of care, to take them to a safe place until they regain competency/capacity (or a guardian is appointed).

I realise you discuss mental health and section 20 several times on your blog (thankyou! Its very enlightening), but I have not seen anyone discus this point. I would really appreciate any light you could shed on this point.

Again the doctrine of necessity is the key issue here – see The doctrine of necessity – Explained (January 31, 2017). As Lord Goff said in In Re F [1990] 2 AC 1 ‘The principle is one of necessity, not of emergency’. So the principle applies whenever it is necessary and in the patient’s best interests to provide care but the aid giver, in this context, the paramedic, cannot communicate with the patient. It means my correspondent’s first point identifies some confusion. My correspondent says:

I understand that where life threatening conditions exist and the patient is unconscious we have a duty of care to take the patient to hospital under the doctrine of necessity.

First for necessity to apply there does not have to be a ‘life threatening condition’ (though the one’s suggested in this post may well be life threatening) nor does the patient have to be unconscious. Taking a lost child by the hand and guiding them to a police station would be justified by necessity. As Lord Goff said:

Take the example of an elderly person who suffers a stroke which renders him incapable of speech or movement. It is by virtue of this principle [necessity] that the doctor who treats him, the nurse who cares for him, even the relative or friend or neighbour who comes in to look after him, will commit no wrong when he or she touches his body.

The doctrine of necessity does not impose a duty of care. It’s true that the paramedics do owe the patient a duty of care. What necessity does is explain what they can do to meet that duty, it is not the principle that imposes the duty but perhaps that is too technical to concern us further.

3. … to be a binding, a refusal of treatment must be informed, cover the situation that has arisen and the person must be competent (In Re T [1992] EWCA Civ 18)

4. A person has decision-making capacity if they are able to understand the nature of the suggested treatment, weigh up the consequences of and communicate his or her decision (In Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290; Gillick v West Norfolk and Wisbech Area Health Authority [1986] 1 AC 112, 169).

I’m going to accept that the patient’s described above are not competent and I note that my correspondent has said ‘we, as clinicians after thorough assessment, have determined the patient has lacked either competency or capacity to refuse transport’. Given that’s true their purported refusal is not binding and so the doctrine of necessity will justify the delivery of treatment, and transport, that is treatment that ‘a reasonable person would in all the circumstance take, acting in the best interests of the assisted person’.

It’s true that the Guardianship Act 1987 (NSW) does have provisions for the appointment of substitute decision makers but we will assume for the sake of the argument, that none of those are relevant in the circumstances (eg even if there is a substitute decision maker, they are not there when the paramedics arrive).

Again we come to the Mental Health Act 2007 (NSW) s 20 and the idea of ‘using’ it. I would suggest s 20 is also irrelevant. Again s 20 says:

An ambulance officer who provides ambulance services in relation to a person may take the person to a declared mental health facility if the officer believes on reasonable grounds that the person appears to be mentally ill or mentally disturbed and that it would be beneficial to the person’s welfare to be dealt with in accordance with this Act.

There is one requirement for this section – that the ambulance officer ‘believes on reasonable grounds that the person appears to be mentally ill or mentally disturbed and that it would be beneficial to the person’s welfare to be dealt with in accordance with this Act.’ But in this scenario you are actually intending that the person be dealt with under the Mental Health Act; here the concern is an underlying physical condition. Second the paramedic is not intending to take the patient to ‘a declared mental health facility’. Section 20 really has no application here.

Section 20 applies where a person is suffering from a mental illness or is mentally disordered and it’s their mental illness/disorder that needs attention. A person may not be competent in which case, even without the Mental Health Act, necessity would justify treatment. The point of s 20 is that is authorises the use of force and more importantly means the staff of the mental health facility may detain the person pending further examination (ss 18 and 27).

Given where the section sits in the Act and the power to use force (s 81) the implication is that s 20 also allows treatment even where the patient is competent to refuse it. For example the patient may understand the advice that he or she is mentally ill and the need for treatment but still believe that the proposed treatment is not warranted or has to take second priority to whatever their mental state demands. But in the circumstances described s 20 has no role to play.

Conclusion

Necessity is not a doctrine of emergency. It justifies the delivery of treatment that is reasonable and in the patient’s best interests when the patient is unable to communicate or form their own wishes. They may be unconscious or for reasons such as head injury or delirium they may not be competent to give, or refuse, consent. In those cases necessity justifies treatment that is reasonable and in the patient’s best interests. It is not necessary to rely on s 20 of the Mental Health Act 2007 (NSW) in the circumstances described.

2 thoughts on “Treating those without capacity to refuse consent”

Michael,
Does the doctrine of necessity allow paramedics to use force e.g. police assistance and mechanical or chemical restraint to take the patient to hospital. E.g. a patient with agitated delirium who attempts to jump out of a moving ambulance, or attempt to hit paramedics. These patients usually need some form of restraint.
Are paramedics covered under our duty of care/necessity to utilise appropriate force? As we are in section 81 of mental health act??

As noted, necessity justifies treatment of a person who cannot consent when the treatment is reasonable and in the patient’s best interests. Further people have a right to use reasonable force in order to defend themselves even when the person who poses a threat is not, because of their mental illness or capacity, not committing a criminal offence. So yes, necessity would justify the use of reasonable force to restrain a person who due to their illness or injury is combative. So why have s 20 and s 81 of the Mental Health Act? First, although s 20 doesn’t say it applies when a patient is competent and refusing consent, that can be implied by the fact that the section fits in the Act in the area of involuntary treatment. A person who is mentally ill is not necessarily incompetent so they can refuse treatment – to administer involuntary treatment is limited to extreme cases. The Mental Health Act is very much intended to restrict the use of involuntary treatment. But if s 20 does apply to allow involuntary treatment then it’s relevant when the patient can consent but is refusing treatment. Second the provision is there to make paramedics feel more comfortable if the person has no physical illness but where say the person is aggressive post head injury, most paramedics would feel comfortable restraining the patient. The mental health Act is not relevant here as no-one is intending to have the patient dealt with under the Mental Health Act.

In short and subject to clinical practice guidelines, a paramedic can retrain a patient who cannot consent to treatment if that restraint is reasonable in the circumstances and the paramedic’s motivation is to act in the patient’s best interests, not for their own convenience.